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Juggling the Fourth Amendment?

That question arises from today’s opinion in United States v. Jones.  In Jones, a divided Supreme Court found that law enforcement violated the Fourth Amendment when it placed a GPS device on a suspect’s car.  While the result was not particularly surprising, how the court got there was.

Ever since Katz v. United States, 389 U. S. 347 (1967), the court has answered Fourth Amendment questions by considering whether the government’s action invaded an expectation of privacy protected under the Constitution.  Prior to Katz, a Fourth Amendment violation arose only when the government trespassed on an individual’s person, property or papers.  In Jones, Justice Scalia reaches back 45 years and resurrects this trespass theory of Fourth Amendment jurisprudence, holding that an unconstitutional search occurred because the officers trespassed by attaching the GPS device to the suspect’s car.

The majority opinion makes clear that it is not doing away with the “privacy” branch of Fourth Amendment jurisprudence, a point Justice Sotomayor drives   home in her concurrence.  While agreeing that the Fourth Amendment protects against governmental trespass, she makes clear that the Fourth Amendment also protects against governmental intrusion on reasonable expectations of privacy, regardless of whether the government trespasses in the process.

So for now there are two balls in the air — trespass and privacy — and law enforcement must keep their eyes on both!

Update 1/25/2012

Tom Goldstein makes an important clarification in this post on the Scotus blog.  In Jones the court only decided that a search took place.  It did not address if that search required a warrant, finding that the government had failed to preserve that argument below. There are a number of exceptions to the warrant requirement and it is entirely possible that a future opinion of the court could find no warrant required for the short term use of GPS Monitoring.  Read Tom’s excellent post for more analysis.

Oral Argument Alert

Florence v. Board of Chosen Freeholders of Burlington County, et al. will be argued on Wednesday this week.  Florence addresses the constitutionality of strip searching detainees prior to their housing at jail.  The SCOTUSBlog has a argument preview here

2011 Supreme Court Preview Update

In my Supreme Court Preview I listed seven pending petitions that government attorneys would want to track.  On the first day of the new term the Supreme Court made that task easier, denying cert in four of those cases: Alto Eldorado Partnership v. County of Santa Fe, City of San Leandro v. Int’l Church of the Foursquare Gospel, Dallas County v. Duvall, Szajer v. City of Los Angeles. Leandro and Szajer, were rulings out of the Ninth Circuit, so those of us on the west coast are bound by their holdings.

The three petitions still pending are; Arizona v. United States, Armour v. Indianapolis, Reichle v. Howards. Responses to the petition are outstanding in all three cases.  The Cities brief in the Armour is due October 14th.   The outstanding briefs in the two other cases are due November 10th.

Interestingly, in Armour the City had waived their response but the court requested that they respond anyway. Someone must be interested in that case!  The prospects for merits review of Reichle also seem better as on September 29th the United States and the State of Colorado filed amicus briefs, both urging the court to grant the petition and reverse the Tenth Circuit. (Reversing the Ninth Circuit’s decision in Skoog by implication).  Twenty other states joined in Colorado’s brief.

2011 Supreme Court Preview

October 3rd marks the start of the 2011 term for the United States Supreme Court. The Court has already accepted review of cases addressing the constitutionality of strip searches of jail inmates, qualified immunity for private attorneys working for government clients and absolute immunity for law enforcement officer’s testimony in grand jury proceedings. Many more petitions are awaiting the Court’s decision on if they merit review. Click here to read The Government Litigation Blog’s 2011 Supreme Court Preview and be ready for the changes the Court has in store for state and local governments this term.

The Partial Death of Conn v. City of Reno

Under § 1983 a governmental entity can be sued for constitutional violations it causes, but is not vicariously liable for such violations by its employees. To establish governmental liability a plaintiff must show that a policy of the entity was the cause of their injury.  In March the Supreme Court issued its decision in Connick v. Thompson, which reversed a decision out of the Fifth Circuit holding that a plaintiff could meet this burden with evidence of a failure to train employees, even absent a pattern of  similar constitutional violations.  A few days later the court entered a summary order reversing and remanding the Ninth Circuits decision in Conn v. City of Reno, and directing that the court reconsider the vacated decision in light of Connick.  Last week the Ninth Circuit followed that directive, vacating the part of its decision that addressed the cities liability.

Conn was a jail suicide case where summary judgment in favor of the defendants was reversed by the Ninth Circuit.  In reversing the district court, the Ninth Circuit held that the known risk of suicide in correctional facilities, coupled with either the cities failure to train officers in suicide recognition and prevention, or its failure to adopt a written suicide prevention policy, could provide a sufficient basis for a jury to conclude that the city was deliberately indifference to the Eight Amendment obligation to provide inmates adequate medical care.

Following the original Conn decision defendants filed a motion for rehearing with the Ninth Circuit that was denied.  Judge Chief Judge Kozinski wrote a ten page dissent, noting that if the decision stood “To avoid liability under our federal Constitution, police departments throughout the Ninth Circuit must now transform their police officers into suicide prevention experts”. Judges O’Scannlain, Kleinfeld, Tallman, Callahan, Bea and Ikuta joined in that dissent.

This is not the end of the Conn saga.  The ruling last week reinstated the part of the original decision that addressed liability of the individual defendants.  Plaintiffs or the individual defendants could seek rehearing in the Ninth Circuit or file another appeal to the Supreme Court.  (The individual defendants were parties to the first Supreme Court appeal).  Even if they don’t, a jury trial still lays ahead, possibly followed by another appeal.

However this does appear to be the end of one thing, governmental liability based on lack of training, at least absent a pattern of similar constitutional violations by untrained employees.

Ninth Circuit Modifies Devenpeck?

The existence of probable cause is a complete defense to false arrest claims.  Arresting officers usually know facts creating pc for multiple crimes but often arrest on only the more serious crimes.  This decision can come back to haunt the officer later if the individual beats the charges and then sues for false arrest, likely in the form of a claim for violation of civil rights.  Can the officer rely on such uncharged crimes to defend the civil rights claim?

The Ninth Circuit’s answer was a qualified yes, it allowed the officer to prevail based on pc for uncharged crimes, but only if the crime was “closely related” to one of the crimes of arrest.    This changed with the Supreme Court decision in Devenpeck v. Alford, which rejected the Ninth Circuits closely related standard.  After Devenpeck, if the facts known to the officer established pc for any crime, the arrest did not violate the suspect’s civil rights.

A recent decision out of the Ninth Circuit has again muddied this area of law.  In Rosenbaum v. Washoe County, the Ninth Circuit acknowledged that under Devenpeck it could not impose the closely related requirement, but it still placed limits on the crimes for which pc will defeat the plaintiffs claim.  The new requirement is that the uncharged crime relied upon to defend the officers’ actions must be one “reasonably within the arsenal of crimes” officers enforce.  You can read the decision here.

What’s an Officer to Do?

It happens; an officer pulls someone over for a traffic violation and instead of staying in the car, the driver gets out.  This creates a safety issue both for the officer and the driver.  Usually it ends with the officer directing the driver back into the car.  Sometimes not. What’s an officer to do?

Not use pepper spray and then a baton.  At least not without warning and any basis that the driver was a physical threat.  So holds the Ninth Circuit in Young v. County of Los Angeles.  The opinion can be accessed here.

Oregon Recognizes Emergency Aid Doctrine

Federal Courts, and the courts of other states have long recognized an exception to the warrant requirement where law enforcement officers enter property to render immediate aid necessary to protect or preserve life or avoid serious injury.   Several cases hinted that the Oregon Supreme Court would follow suit, but ultimately avoided the question, finding the exception did not apply on the the particular facts.  Now we know the answer.

In State v. Baker, decided yesterday, the Oregon Supreme Court applied the emergency aid doctrine to uphold a trial courts denial of a motion to suppress.  To fall within this exception the officer must have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or to assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.

Officers should keep in mind the distinction between this exception and the emergency/exigent circumstances exception, which requires probable cause.

You can read the opinion here